Agency Flashcards

1
Q

How does an agency form through an act?

A

The principal assents to the agent that the agent shall represent and act on the principal’s behalf to third parties and subject to the principal’s control, and the agent assents.

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2
Q

What are the duties owed by an agent to the principal?

A
  • Loyalty
  • Obedience to reasonable directions
  • Duty of care under the circumstances
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3
Q

Termination of actual authority

A
  • Lapse of specified or reasonable time
  • Occurrence of specified event
  • Change in circumstances
  • Breach of duty (agent)
  • Unilateral termination (breach)
  • Operation of law (death, incapacity, filing statement of auth w sec of state)
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4
Q

How does apparent authority arise?

A

Arises from manifestations of A’s authority due to P holding out as such via P’s words, actions, or failure to act, thereby inducing 3P to reasonably but rely on that authority

Impostors: If P negligently lets impostor appear to have agency, P is liable for impostor’s actions

Lingering apparent authority: If A’s actual authority has terminated (unless by death or incapacity), he has apparent authority to act on P’s behalf as to 3P with whom P knows he dealt with, unless 3P received notice of the termination

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5
Q

What is ratification?

A

If an “agent” acts for P w/o any authority but P subsequently validates the act (expr/impl), P is bound. P must 1) know or have reason to know all material facts, 2) manifest assent through words or actions, and 3) have capacity

Undisclosed P cannot ratify unauthorized act under 2d Rest, but CAN under 3d Rest.

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6
Q

What is an agent’s liability to a 3P in a K?

A

Disclosed P: A is generally not liable (and P is liable on the K), unless K intended A to be liable

Unidentified (partially disclosed) P: A and/or P may be liable at 3P’s election. A may avoid liability by disclosing P’s identity

Undisclosed P: A and/or P may be liable at 3P’s election

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7
Q

What are the factors used to determine whether someone is an employee or independent contractor?

A
  • Whether A is engaged in distinct occupation or business
  • P’s control over manner and method of A’s performance
  • characterization by parties
  • customs of locality regarding supervision of work
  • degree of skill required on the job
  • whose tools or facilities are used
  • length of employment (short more likely to be IC, indefinite more likely to be employee)
  • basis of compensation (project basis vs. time basis)
  • understanding of parties
  • whether hired to further P’s business (nonbusiness purpose, e.g., mowing lawn, more likely IC)
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8
Q

Relationship by estoppel

A

If P creates the appearance of employer-employee relationship that 3P relies on, P is estopped from denying the relationship and will be liable under respondeat superior

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9
Q

Inherent authority is:

A
  • Derived solely from the agency relation and exists for the protection of persons harmed by or dealing with an agent.

Group 1: A acts to further E’s business and his conduct harms 3P

Group 2: P has K liability when there is an agency relationship between P and A, A engages in acts that are normally authorized but are not bc A violated P’s instructions or acted in his own interest.

ELIMINATED in 3d Rest.

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10
Q

What is respondeat superior?

A

Under the doctrine of respondeat superior, an employer is vicariously liable for employee’s negligent acts if the employee was acting within the scope of employment

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11
Q

What is the scope of employment?

A

Performing work assigned by the employer or engaging in a course of conduct subject to the employer’s control

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12
Q

What are the factors that determine if conduct is within the scope of employment:

A

(i) it’s the kind the employee is employed to perform;
(ii) it occurs substantially within the authorized time and space limits; and
(iii) it is motivated (in whole or part) by a purpose to serve the employer.

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